McCormick v. Anschutz Mining Corp.

No. S 88-97 C(5) (E.D. Mo. January 30, 1989)

The court holds that plaintiffs in a citizen suit failed to state a claim against the Environmental Protection Agency (EPA) because EPA does not have a nondiscretionary duty to investigate citizen complaints of violations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Planning and Community Right-to-Know Act (EPCRA). The CERCLA and EPCRA provisions cited in plaintiffs' complaint do not require EPA or its administrator to take any particular action. The court next holds that defendant Missouri Emergency Response Commission (MERC) did not violate the informational requirements of EPCRA. Plaintiffs never made a request for information from MERC and the Southeast Missouri Planning Commission promised to forward any reports received from defendant mining company to plaintiffs in response to their request for information. The court finally holds that two of the plaintiffs lack standing to bring suit against defendant mining company because they have not been injured by the alleged discharge of pollutants from Anschutz's mine. The possibility that one of the plaintiffs will be exposed to future liability because he was in charge of the mine's refinery until it was closed was not sufficient to confer standing.

Counsel for Plaintiffs
H. Byron Mock
1282 Gilmer Dr., Salt Lake City UT 84105
(801) 583-0255

Counsel for Defendants
Richard Oertli
Armstrong, Teasdal, Schlafly, Davis & Dicus
One Metropolitan Sq., Ste 2600, St. Louis MO 63101
(314) 621-5070

W. Christian Schumann
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 272-8482

[19 ELR 20902]

Limbaugh, J.:

Memorandum and Order

Plaintiff Walter R. McCormick filed this action on June 6, 1988, against Anschutz Mining Corporation (Anschutz), Environmental Protection Agency (EPA) and State of Missouri Emergency Response Commission (MERC) alleging violations of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. § 9601 et seq., and Title III of SARA, also known as the Emergency Planning and Community Right-to-know Act of 1986, 42 U.S.C. § 11001 et seq.

Defendant Anschutz filed a motion to dismiss or for summary judgment on July 15, 1988, arguing that plaintiff lacked standing to bring the instant action. On August 12, 1988, the Court granted plaintiff leave to file an amended complaint joining Leroy Braswell as an additional plaintiff. After the filing of plaintiffs' amended complaint, defendant EPA (by its administrator Lee Thomas), MERC and Anschutz filed motions to dismiss which argued that plaintiff's amended complaint should be dismissed for lack of subject matter jurisdiction, failure to state a claim and lack of standing. On November 4, 1988, plaintiffs were granted leave to join an additional plaintiff, Alma L. Tinsley. In addition to the allegations of CERCLA and Title III SARA violations, Tinsley alleges violations of the Federal Water Pollution Control Act, as amended by the Clean Water Act, 33 U.S.C. § 1251 et seq.

I. EPA Motion to Dismiss

Defendant Lee Thomas, EPA administrator, urges dismissal of plaintiffs' complaint for lack of subject matter jurisdiction and for failure to state a claim. The thrust of defendant's argument is that plaintiff's complaint does not allege that EPA has violated any statute.

Section 310(a) of CERCLA, 42 U.S.C. § 9659(a), authorizes a civil action against the administrator of the EPA "where there is alleged a failure . . . to perform any act or duty under this chapter . . . which is not discretionary." Similarly, a civil action is authorized against the administrator pursuant to § 326 of SARA, 42 U.S.C. § 11046, if the administrator fails to perform certain enumerated duties.

Plaintiffs' complaint alleges specific CERCLA and SARA violations against Anschutz, but not against EPA. Despite this fact, plaintiffs contend a suit against EPA is proper. Relying on Illinois ex rel. Scott v. Hoffman, 425 F. Supp. 71 (S.D. Ill. 1977), plaintiff contends, "The EPA is mandated to act when a violation is directed to its attention and a civil action will lie against the administrator to compel him to act." Memorandum in Opposition to Defendant Thomas' Motion to Dismiss at 8. But in a case involving the EPA's duty to investigate citizen complaints under a federal statute similar to CERCLA and SARA, the Eighth Circuit Court of Appeals reached a different conclusion. In Dubois v. Thomas, 820 F.2d 943 [17 ELR 21008] (8th Cir. 1987), the Court upheld the EPA administrator's interpretation of the Federal Water Pollution Control Act that EPA had only a discretionary duty to investigate citizen complaints of FWPCA violations. Id. at 948-50.

Under Dubois, the Court believes a civil action will not lie against EPA unless plaintiffs can identify specific statutory provisions [19 ELR 20903] that the administrator has violated. No such allegations are found in plaintiffs' complaint. Further, none of the CERCLA or SARA provisions cited in plaintiffs' complaint require any particular action by EPA or its administrator. Therefore, having failed to allege any statutory violation, the Court finds plaintiffs' complaint against EPA must be dismissed.

II. MERC Motion to Dismiss or for Summary Judgment

Defendant MERC contends it is entitled to dismissal or summary judgment for three reasons: first, plaintiffs' complaint fails to state a claim upon which relief can be granted; second, plaintiffs lack standing; and third, the Title III SARA Requirements do not apply to the Madison Mine site. For the reasons stated below, defendant MERC's motion for summary judgment will be sustained.

Plaintiffs' complaint alleges that they have been injured by being denied information under the Community Right to Know Act, also known as Title III of SARA. Section 312 of SARA, 42 U.S.C. § 11022(e)(3), provides for the dissemination of tier II information to the public upon the proper request to a state emergency response commission or local emergency planning committee. Section 326 of SARA, 42 U.S.C. § 11046(a)(1), authorizes a civil action against a state emergency response commission for failure to provide a mechanism for public availability of information, § 11046(a)(1)(C), or for failure to respond to a request for tier II information, § 11046(a)(1)(D).

The exhibits and affidavits appended to defendant's motion establish that defendants have not violated the information requirements of SARA. In November 1987 and March 1988, McCormick made several requests to the Southeast Missouri Regional Planning and Economic Development Commission for tier II information. Exhibits A, B and C. The Commission is a coordinator for several southeast county local emergency districts, including Madison county. Exhibit E, Affidavit of James H. Long, P.8. The Commission informed McCormick that it did not have any of the information he requested, but that it would forward to McCormick any reports Anschutz filed. Exhibit D. Plaintiffs have never made a request for information from defendant MERC. Exhibits E and G.

The failure to file a request with MERC, in addition to the Southeast Missouri Planning Commission's promise to forward to plaintiffs any reports it receives from Anschutz, defeats plaintiffs' claim under SARA. In plaintiffs' response to defendant's motion to dismiss or for summary judgment, plaintiffs make the same claim against MERC that they raised against EPA — that MERC has a duty under SARA to obtain reports when it knows that Anschutz has violated the reporting requirements. As discussed above, however, the statute imposes no such requirement on MERC. Defendant's exhibits and affidavits show that it has complied with the statutory provisions relating to disclosure of information. Plaintiffs' failure to file affidavits showing there to be a genuine issue of material fact on this issue warrants summary judgment being entered in favor of defendant MERC. City of Mount Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273 (8th Cir. 1988).

III. Anschutz' Motion to Dismiss or for Summary Judgment

Defendant's motion, filed prior to the joinder of Alma Tinsley as a plaintiff, is based solely on the lack of standing of plaintiffs McCormick and Braswell. Article III of the Constitution limits the court's authority to the resolution of "cases" and "controversies." This limitation requires that a litigant have standing to challenge the action sought to be adjudicated in the lawsuit. A plaintiff must show (1) an actual or threatened injury: (2) causation; and (3) redressability of injury. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982).

Anschutz has twice raised the standing requirement as grounds for dismissal. Plaintiff McCormick's response each time has been to join an additional plaintiff in an attempt to satisfy this requirement. The record indicates that plaintiffs McCormick and Braswell lack standing to bring this action. Each has testified in deposition that he has not been injured in any way by the alleged discharge of pollutants from the Madison Mine. McCormick's claim that he may be exposed to some future liability because he was in charge of the refinery at the Madison Mine until it was closed in 1961 is without merit. The mere possibility of future injury is not enough. Summary judgment will be entered against plaintiffs McCormick and Braswell. Anschutz has not moved for the dismissal of the most recent plaintiff, Alma Tinsley.

Accordingly,

IT IS HEREBY ORDERED that the motion of defendant Lee M. Thomas to dismiss plaintiffs' complaint is SUSTAINED. Plaintiffs' amended complaint is DISMISSED with prejudice against defendant Thomas for lack of subject matter jurisdiction.

IT IS FURTHER ORDERED that the motion of defendant Missouri Emergency Response Commission to dismiss or, in the alternative, for summary judgment, is SUSTAINED. Summary judgment is entered in favor of defendant MERC and against plaintiffs on the merits of plaintiffs' amended complaint.

IT IS FINALLY ORDERED that the motions of defendant Anschutz Mining Corporation to dismiss or for summary judgment are SUSTAINED. Summary judgment is entered in favor of defendant Anschutz and against plaintiffs Walter R. McCormick and Leroy Braswell on the merits of plaintiffs' amended complaint.